TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0001302; CASE
M. Kaneshiro for petitioner.
McCullen for respondent.
McKENNA, POLLACK, AND WILSON, JJ., AND NAKAYAMA, J.,
CONCURRING AND DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
been settled for decades that the right to remain silent is a
fundamental component of the right against compelled
self-incrimination guaranteed by article I, section 10 of the
Hawai'i Constitution. What has been subject to
disagreement among several jurisdictions is the point in time
at which the right to remain silent attaches. In 2008, this
court, in State v. Mainaaupo, 117 Hawai'i 235,
178 P.3d 1 (2008), held that the right to remain silent
attaches at least as of the time that a person is arrested.
In this case, the primary question that we resolve is the one
that the Mainaaupo court left open: whether the
right to remain silent attaches prearrest and, if so, in what
manner and to what extent may prearrest silence be utilized
by the State in a criminal trial.
FACTS AND PROCEDURAL BACKGROUND
February 7, 2014, Lester Tsujimura was charged by complaint
with Operating a Vehicle Under the Influence of an Intoxicant
(OVUII), in violation of Hawaii Revised Statutes (HRS) §
291E-61(a)(1) and/or (a)(4) (2007 & Supp.
2012). Tsujimura moved to dismiss the complaint
for failure to state an offense, arguing that the complaint
was insufficient for failing to define the term
"alcohol" and thus did not sufficiently apprise him
of what he must be prepared to meet at trial.
hearing on the motion,  Tsujimura argued that the statutory
definition of alcohol includes only alcohol that was produced
through distillation, and, as such, the definition must be
included in the complaint. The State maintained that the
motion to dismiss should be dismissed as untimely. On the
merits, the State contended that the definition of
"alcohol" also includes ethyl alcohol regardless of
origin and that a person of common understanding would
understand what "alcohol" means within the OVUII
statutory scheme. In reply to the State's timeliness
argument, Tsujimura argued that the motion to dismiss for
failure to state an offense is jurisdictional and may be
raised at any time.
District Court of the First Circuit (district court)
dismissed the motion to dismiss as untimely. Alternatively,
the court determined that the statutory definition of alcohol
is not restricted to alcohol derived from distillation and
that a person of common understanding would understand what
alcohol means even if the complaint does not set forth its
statutory meaning. The district court reasoned that even
though the plain language of the statutory definition of
alcohol appears to include only alcohol produced by
distillation, the court would "ignore the plain reading
... to avoid an absurd result" in which only persons
impaired by hard liquor could be prosecuted for OVUII.
trial, Officer Thomas Billins of the Honolulu Police
Department testified that, on January 15, 2014, at
approximately 12:05 a.m., he saw Tsujimura driving a white
SUV on the Moanalua Freeway just past the Ala Kapuna
overpass. According to Officer Billins, Tsujimura entered the
shoulder lane several times, "at times straddling the .
. . right-most lane and the right shoulder."
Billins turned on his light and sirens to notify Tsujimura
that he was being stopped, but Tsujimura was not responding,
so Officer Billins used the loudspeaker system in his police
car to request Tsujimura to pull over. After Tsujimura
stopped, Officer Billins approached to inform him of the
reason he was stopped and requested his driver's license,
registration, and insurance information. Tsujimura
immediately produced his driver's license, but he had
difficulty producing his registration and insurance
information and had to fumble through a stack of documents.
Billins testified that Tsujimura had a very flush red face,
his speech was slurred, and he had red and watery eyes.
Officer Billins added that he smelled an odor of alcoholic
beverage emitting from Tsujimura's breath or from inside
the vehicle cabin. The officer related that he requested that
Tsujimura participate in standardized field sobriety tests
(FSTs), to which Tsujimura agreed. When asked whether he
noticed Tsujimura having had any difficulty exiting his
vehicle, Officer Billins stated that he did not "see him
limping or anything like that, " that he got out of his
vehicle normally, and that he did not "fall down or
anything." Before performing the FSTs, Tsujimura told
Officer Billins that he had an old injury to his left knee,
"[s]omething about his ACL and it was a bad knee, "
and that he was taking medication for his high blood pressure
Billins testified that, while he was conducting the
horizontal gaze nystagmus test, he observed that
Tsujimura's face was flushed and red and that he had a
slight sway from left to right. Over the objection of the
defense, Officer Billins testified as to Tsujimura's
performance on the walk-and-turn test. Officer Billins
stated that Tsujimura broke his heel-to-toe stance twice,
stepped off the line five times, failed to walk in a
heel-to-toe fashion on all steps, failed to keep his hands
six inches or less from his side, stumbled while turning, and
had to raise his arm above shoulder level for balance, all of
which did not comply with Officer Billins' instructions
and demonstration of the walk-and-turn test. When asked about
Tsujimura's performance of the one-leg stand, Officer
Billins stated that Tsujimura was unable to keep his foot six
inches above the ground, put his foot down on several
occasions, did not raise his foot off the ground in the first
ten seconds of the test, was unable to count after several
prompts to begin counting, was unable to maintain his hands
down at his side, and did not follow
Billins also testified that, having been apprised of
Tsujimura's injury to his left knee, he suggested, during
the one-leg stand, that "if [Tsujimura] were to choose a
leg, it may be wise to lift his injured leg because he would
have to put weight on the leg that he's standing
on." Officer Billins added that Tsujimura raised his
left leg during the one-leg stand.
cross-examination, Officer Billins stated that he followed
Tsujimura's vehicle for about two miles before Tsujimura
finally pulled over. The officer testified that Tsujimura was
not changing lanes, was not going over the speed limit, was
not slowing down or speeding up, did not follow vehicles too
closely, and did not make any inconsistent signals. Officer
Billins related that it took Tsujimura only eight seconds to
pull over from the time he turned on his sirens and lights.
Officer Billins noted that out of the 24 National Highway
Traffic Safety Administration (NHTSA) visual detection clues,
Tsujimura exhibited only one--trouble maintaining lane
position. Officer Billins testified that Tsujimura
did not repeat questions or comments, lean on the vehicle, or
provide incorrect information or change his answers. Officer
Billins indicated that red, watery eyes could be caused by a
number of factors other than alcohol impairment, such as
fatigue and long days at work. Officer Billins also expressed
that, based on his training and experience and the NHTSA,
odor of alcohol is a poor indicator of a person's level
of impairment and has no bearing on the amount and nature of
the alcohol that the person consumed.
counsel asked Officer Billins about his testimony on direct
examination regarding Tsujimura's injury. According to
Officer Billins, Tsujimura stated that he had an injury on
the left leg or left knee and a torn ACL on an unspecified
leg. Officer Billins said that, when he recommended that
Tsujimura raise his left leg for the one-leg stand, he was
not aware "whether raising a leg puts more physical
strain on your ACL than keeping it planted" and
"whether [Tsujimura's] knee injury or ACL injury
affected his ability to perform the" one-leg stand and
redirect examination, the prosecutor asked Officer Billins
whether Tsujimura, while exiting his car, explained that he
could not get out of the car due to an ACL injury. The
relevant exchange between the prosecutor and Officer Billins
was as follows:
[Prosecutor:] . . . You testified that when the defendant
left the car he didn't have any difficulty exiting the
[Officer Billins:] Yes.
[Prosecutor:] So did the defendant at that time explain
to you he couldn't get out of the car because of an
[Defense Counsel:] Objection, Your Honor. It comments on
the defendant's right to remain silent.
[The Court:] It's overruled. Let's see if the
statement comes out.
[Prosecutor:] Do you recall if the defendant indicated to
you he would have difficulty exiting the car because of
his previous leg injury?
[Officer Billins:] No statements were made.
[Defense Counsel:] And Your Honor, that's exactly what
I'm talking about. The Supreme Court -- there's
Supreme Court case law that says that the prosecutor cannot
comment or elicit testimony that comments on the
defendant's right to remain silent. He's under no
obligation to speak or say anything to Officer Billins.
[The Court:] That's true here in court.
[Defense Counsel:] Correct.
[The Court:] There's no motion to suppress his statements
at the scene of the stop.
[Defense Counsel:] No. I understand that. But during the
course of the trial, [the prosecutor's] trying to imply
that he had some obligation to tell Officer Billins something
. . .
[The Court:] I understand what you're saying. Your
objection to the prosecutor's line of questioning was
thus based on the ground that the question sought and
elicited a response that commented on Tsujimura's right
to remain silent. The district court overruled the objection
on the grounds that the prosecutor's question was not
implying that Tsujimura was under obligation to speak in
court, which the district court concluded was inappropriate;
rather, the prosecutor's question was implying that
Tsujimura had some obligation to say something at the time of
the stop, which the district court intimated was permissible.
Officer Billins' testimony, the State rested and
Tsujimura moved for a judgment of acquittal, arguing that the
State failed to present evidence as to the kind of alcohol
that allegedly impaired his faculties. The district court
denied the acquittal motion, and Tsujimura rested without
presenting any evidence.
ruling on the case, the district court found that the car
that Tsujimura was driving was straddling the line separating
two lanes on the Moanalua freeway; that the eight seconds it
took for Tsujimura to pull over was still a fair amount of
time given that the police lights were activated; that
Tsujimura's speech was slurred, his face was flushed and
red, and his eyes were red and watery; and that when
Tsujimura "alighted from the car, he did not indicate
any difficulty walking." The district court also made
findings consistent with Officer Billins' testimony as to
Tsujimura's performance on the FSTs.
on the totality of the circumstances, including the manner in
which Tsujimura was driving and Tsujimura's physical
condition that Officer Billins observed, the district court
concluded that the State proved beyond a reasonable doubt all
the elements of the OVUII offense charged under HRS §
291E-61(a) (1) .
filed a notice of appeal to the Intermediate Court of Appeals
(ICA), challenging the following rulings of the district
court: (1) denial of his motion to dismiss the OVUII charge
for failure to define the term "alcohol" in the
complaint; (2) admission of Officer Billins' testimony
regarding Tsujimura's failure to state that his injury
would prevent him from getting out of his car; (3) denial of
his motion for judgment of acquittal on the grounds that
there was insufficient evidence that he had consumed
"alcohol"; and (4) denial of his motion for
judgment of acquittal on the grounds that there was
insufficient evidence to establish that ...